DATE OF FILING: 5.9.2013
DATE OF DISPOSAL: 17.12.2016
Dr. N.Tuna Sahu, Member:
The complainant has filed this consumer complaint under Section 12 of Consumer Protection Act, 1986 alleging deficiency in service against the Opposite Parties (for short, O.Ps) and for redressal of his grievance before this Forum.
2. Briefly stated the case of the complainant is that he purchased a Bolero Jeep by taking loan of Rs.4,33,000/- from the O.Ps on 22.7.2010 vide agreement No. XVFPBRH00000491604 and accordingly the EMI of the said loan was fixed at Rs.12,463/- per month with rate of interest of 8.82% per annum. The first installment was started on 1st August 2010 and last installment was to be paid on 1st January 2014. At the time of sanction of loan, the O.Ps received post dated cheque of 23 numbers from the complainant. The complainant is the consumer of the O.Ps. The vehicle is registered under the Registering Authority, Chatrapur vide Registration No.OR-07-V-0200 on dated 16.08.2010 and paid tax of Rs.31,817/- and it was valid up to 31.07.2023. The vehicle is engaged for self use of the complainant. The payment of installment started from 1.8.2010 and was to be closed on 1.1.2014. It is also alleged that on June 2012 after verification of sanction letter along with schedule it is found that the rate of interest comes to 16.2% per annum. The complainant issued several letters to O.Ps for recast the account as per sanction letter with interest 8.82% per annum, but there is no fruitful result till today. Due to the defective account statement, the complainant has not paid the installment from March 2013. The complainant has informed about the wrong schedule with 16.02% interest per annum to all O.Ps since June 2012 to till date, but they keep mum, it amounts to deficiency in service on part of O.Ps. However, all of sudden on 26.6.2013 the O.Ps seized the vehicle at Berhampur and taken to their garage. Driver wanted to talk with complainant but the O.Ps does not allow him to talk with complainant and snatched the mobile of driver. The O.Ps have seized the vehicle without any notice. As per law without notice the O.Ps can’t seize the vehicle. The O.Ps has neither issued any intimation or notice to deposit the EMI nor recast the account but seized the vehicle without any reason. So it comes under deficiency in service and unfair trade practice. On 26.6.2013 the O.Ps issued a letter to complainant to make payment of outstanding amount of Rs.1,31,012/- towards overdue installment of Rs.86,686/- and additional finance charge of 44,327/-. The complainant immediately approached to O.P.No.1 to deposit the overdue installment of Rs.86,686/- and requested to release the vehicle. But the O.P.No.1 denied to accept to Rs.86,686/- and demanded whole amount of Rs.1,31,012/-. It is also alleged that at that time the complainant verified the condition of the vehicle and found that all four new tyres were changed, no sound system inside the vehicle, bumper damaged, all seat covers were not found and the right side headlight damaged and battery was also stolen. The complainant informed O.P.No.1 orally as well as in written about the damages of the properties of the vehicle and the cost of parts of Rs.64,000/-. The O.Ps were seized the vehicle with the help of GUNDA and anti social elements. The O.Ps have also not issued the seizer list to complainant. The vehicle was in good condition before seizing. The complainant approached to O.P.No.1 several times and requested for recast the account and to refund stolen/replaced/damaged part of the vehicle and to receive the installment due and to release the vehicle but the O.Ps demanded Rs. 3,20,000/- as total due and threatened to sell out the vehicle if not deposit Rs.3,20,000/- within 5.9.2013. The date of final installment was 1.6.2014. The complainant asked to issue the written letter but they denied giving any written letter. Now the O.Ps has taken steps to sale the vehicle. It is also alleged that the cost of Battery is Rs.6,000/-, cost of 4 Nos. of tyres comes to Rs.22,000/-, cost of headlight is Rs.3,000/-, cost of seat covers is Rs.11,000/- and cost of sound system and bumper cost Rs.15,000/- and 7,000/- respectively. Hence, the complainant is entitled to get Rs.64,000/- from the O.Ps as damaged/stolen parts of the vehicle. The excess deposited amounts to be adjusted after recast of the account as per rate of interest 8.82% per annum. Therefore, the complainant has prayed before this Forum to direct the O.Ps to release the aforesaid vehicle and not to sale the vehicle in dispute. The O.Ps harassed the complainant by seizing the vehicle and threatened him that O.P. will be sold the vehicle, if not deposited Rs.3,20,000/- within 4.9.2013. The O.Ps liable to recast the account under 8.82% of interest and pay damaged parts of Rs.64,000/- to complainant. It is also prayed the complainant wants to deposit the actual due amount and interested to release the vehicle. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to release the vehicle OR-07-V-0200 in favour of the complainant, not to sale the vehicle and to pay cost of litigation and other reliefs as the Forum deems fit in the interest of justice.
3. Upon notice the O.Ps filed version on 9.10.2013 and written argument on 15.12.2015 through his learned counsel Shri Dipak Ku. Shukla, Advocate. It is stated that the instant consumer complaint filed by the complainant is not maintainable either in law or in facts. The complainant was a defaulter for which the hypothecated vehicle was taken into custody and after notice the vehicle was disposed of against highest quote prior to filing of the present dispute. Law is well settled by the Hon’ble National Commission in the case of Yakoob Ali Khan versus Singh Auto CPC 2005 (2) 596 wherein it was held that certain technical question relating to seizure, auction of vehicle, recovery certificate etc are outside the scope of Consumer Forum and thus the present complaint is liable to be rejected being not maintainable. The complainant at the time of availing loan was in retail medicine business for last 16 years with turnover of Rs.18,00,000/-. So the present vehicle was not for earning livelihood rather facilitating his medicine business. As per the said loan agreement the complainant was to pay Rs.12,463/- in 47 EMIs commencing from 1.8.2010 against financed amount of Rs.4,33,000/-. But the complainant very irregular in repayment and admittedly he is a defaulter. The vehicle was sold in auction at best available price. After adjustment of the sale proceed in the loan account of the complainant, notice was issued to him for the balance amount which he is liable to pay as per the terms of agreement. Admittedly the vehicle was being plied by a paid driver and not by the complainant for earning livelihood. Due to default there was regular follow-up for repayment but the complainant did not prefer to make the repayment for the hypothecated vehicle which was taken into custody in accordance to the defaulting clause of the loan agreement with due intimation to local law enforcing authorities. The copies of the pre-seizure letter, pre and post intimation to police are annexed. Due to dishonor of cheque a complaint is also sub-judice against the complainant vide 1CC case No. 3831/2012 before the learned SDJM, Bhubaneswar. The hypothecated vehicle has been taken to possession in accordance to the rights vested under the defaulting clauses of the agreement. After taking possession of the hypothecated asset a pre sale letter was issued to the complainant. The alleged dispute being contractual in nature does not fall under the ambit of the Consumer Protection Act, 1986. There is neither any ‘arbitrariness’ or ‘deficiency’ in service in the aforesaid actions of the O.Ps. All actions are strictly in accordance with the terms of a lawful agreement executed between the complainant and the O.Ps. There is no cause of action to file the present dispute before this Hon’ble Forum. The jurisdiction has been confined at Chennai as per the ‘jurisdiction’ clause of the agreement. Hence this Forum lacks territorial jurisdiction to try this dispute and no part of cause of action has arisen under the territorial jurisdiction of this Forum. The relief sought for a claim made in prayer are unsustainable in the eyes of law and the claim are false, baseless and vexatious which are liable to be rejected with cost.
4. On the date of final hearing, we heard arguments from the learned counsel for both parties at length. We have also perused the pleading and gave a thoughtful consideration to the arguments advanced before us. During the course of hearing we have also perused the case record and have also gone through the materials placed on it.
During the course of hearing of the dispute, it reveals that it is not in dispute that the complainant is a loanee and the O.P. is financier of the vehicle bearing No.OR-07-V-0200. It is also beyond dispute that the complainant availed the loan from the O.Ps on execution of a valid agreement bearing No.XVFPBRH00000491604 on 30.6.2010 at Chennai as per the asset description, loan terms and conditions and repayment schedule as mentioned in the schedule of agreement. On careful verification of the complaint and written argument of the complainant, it appears that the complainant has alleged that the O.Ps have charged excess rate of interest and collected more amount through the EMIs paid by him. It is also revealed that the complainant has alleged theft and change of some valuable assets worth Rs.64,000/- from the disputed vehicle which is claimed to be compensated by the O.Ps and has also prayed to release of the vehicle on payment of the outstanding amount of Rs.86,686/- towards default EMIs with regard to the vehicle loan. It is also contended by the O.Ps that the complainant is liable to pay Rs.1,31,013/- as on 26.6.2013 and Rs.2,91,543.70 as on 4.7.2013 toward total outstanding due for release of the vehicle. However, the complainant in his complaint has alleged that the O.Ps have demanded Rs.3,20,000/- towards outstanding due on the vehicle loan and also threatened to sell out the vehicle if not deposited as on 05.09.2013. It is also a fact on record which is not denied by the complainant that due to dishonor of cheque a complaint is also sub-judice against the complainant in the Court of SDJM, Bhubaneswar vide 1CC Case No.1CC3831/2012 for adjudication. The O.Ps have also filed documentary evidence of copies of financial call letter to the customer for repayment of outstanding dues and letters of pre-seizure and post seizure intimation to Police Station, pre-sell letter to the customer, inventory of the vehicle, quotation for purchase of vehicle from the prospective buyers along with their proof of identity and receipt regarding cost of vehicle sold to the prospective buyers. In view of the aforesaid fact and circumstances of the consumer dispute, whether this Forum has got jurisdiction to adjudicate the matter under summary procedure?
5. To address the above question, we would like to say that the present complainant is a loanee under the O.Ps who was availed a vehicle loan from the O.Ps under a valid Loan Agreement which was executed at Chennai. As per the loan agreement under Clause-6, the loanee complainant shall pay the EMIs of Rs.12,463/- in 47 EMIs commencing from 1.8.2010 against financed amount of Rs.4,33,000/- and the last date of installment repayment was 1.6.2014 as mentioned in the repayment schedule of the loan agreement placed on the case record as Annexure-B. On perusal of the loan agreement and schedule of agreement it is found that the complainant is agreed to make repayment of aforesaid loan amount in 47 EMIs as discussed above along with interest @8.82% per annum as per flat rate of interest and interest @ 48% per annum as per additional rate of interest. Besides, the schedule of agreement also mentions about cheque bounce charges and the mode of loan repayment was Post Dated Cheque (PDC). That apart, the loan agreement also defines the rate of interest under Clause-2 of the agreement and under Clause-7 of the said agreement it mentions about mode of repayment of installments. The events of default of repayment has been mentioned under Clause-10 of the agreement and Clause-11 describes the repossession, termination and company’s right in case of default of repayment of loan amount by the complainant. The complainant has signed the agreement with free will and he is aware of the aforesaid Clauses of the contract which is also beyond dispute. From the case record it is clear that there is a dispute regarding the outstanding due and for that the O.Ps have repossessed the vehicle of the complainant due to non-repayment of outstanding dues and finally sold the vehicle to a third party. In this case, the complainant has also alleged that the statement of account is not correct and the O.Ps have charged exorbitant rate of interest. In this regard we would like to say that with regard to dispute regarding rate of interest, this Forum is not competent to adjudicate the dispute in this summary procedure. Further, the complainant has also alleged about theft and change of assets worth Rs.64,000/- from the disputed vehicle by the O.Ps and have prayed to direct the O.Ps to compensate the same. In this regard, we would like to say that in this summary procedure it is not possible to examine the complex factual position of the case as during the course of hearing of the matter, it was not possible to ascertain the same hence it is not possible to hold that the O.Ps actually to have stolen or changed the assets of vehicle. Moreover, it is also found that due to chronic default of the loan repayment by the complainant, the vehicle in dispute has already been sold to a third party by the O.Ps on receipt of Rs.2,70,000/- towards cost of the vehicle. Under the present fact and circumstance it is neither possible to direct the O.Ps to pay Rs.64,000/- towards stolen/changed assets nor to direct them to release the vehicle on repayment of outstanding dues by the complainant. Besides, it is also a fact that in the same cause of action and due to cheque bounces, a 1CC Case bearing No.3831/2012 is sub-judice before learned SDJM, Bhubaneswar for adjudication. In the above context, we are convinced that this is a complex matter which requires voluminous examination and reexamination of documents and persons involved which is not possible under this summary procedure. The learned counsel for the O.Ps in his argument has also contended that this Forum can’t adjudicate this matter in view of the order of Hon’ble National Commission in the case of Yakoob Ali Khan vs. Sing Auto reported in 2005 (2) 596 wherein it was held that certain technical questions relating to seizure, auction of vehicle, recovery certificate etc are outside the scope of Consumer Forum. On careful verification of materials on the case record and perusal of Loan Agreement signed by both parties, we found that it is a case relating to disputed EMI payments, dispute with regard to rate of interest, vehicle seized by O.Ps and sold to a third party due to default of EMIs by complainant, allegation of theft and change of valuable assets worth Rs.64,000/- from the disputed vehicle and a 1CC Case is also pending against the complainant in the court of learned SDJM, Bhubaneswar. Above all, it is a case of violation of contractual obligation by parties which can’t be adjudicated in this Forum. We are, therefore, not inclined to adjudicate this complex matter in this summary procedure and this should be relegated to a court of competent jurisdiction for proper adjudication.
6. Consequently, in the light of above discussion and considering the factual position of the case, we dismissed the complaint of the complainant due to devoid of any merits with a direction to the complainant to file such complaint before any other competent jurisdiction for adjudication of his dispute and he may avail the benefit under Section-14 of the Limitation Act, 1963 in the best interest of justice. The case of the complainant is disposed of accordingly. No order as to cost.
7. The order is pronounced on this 17th day of December 2016 under the signature and seal of this Forum. The office is directed to supply free copy of this order to the party as per rules. A copy of this order be sent to the server of www.confonet.in for posting in the internet then the file be consigned to the record room.
